This is a quiet day in the decision department, so here’s a quick look at a pending cert.  petition.

Stay v. Dismissal

I usually don’t review petitions in the U.S. Supreme Court unless the Justices grant cert.  However, a petition that has been circulated for consideration at this  Friday’s conference is worth a look.  Smith v. Spirrizzi, Dkt. No. 22-1218, addresses the Circuit split over whether Section 3 of the Federal Arbitration Act limits a court to staying an action when compelling arbitration or whether the judge has discretion to dismiss the case if all issues in dispute will be arbitrated.  Petitioners contend that the issue represents a split between the First, Fifth, Eighth, and Ninth Circuits, who “permit[] district courts to dismiss,” and the Second, Third, Sixth, Seventh, Tenth and Eleventh Circuits, which “require a stay upon the application of a party.”  They argue that the Fourth Circuit is even split among its own judges.  Respondents maintain that the split is “not as deep” as Petitioners claim, although they seem to acknowledge that there is some division among the Circuits.  They also argue that the practical effect of any such split is minimal, as the dismissal doctrine applies only where there are no issues for the court to resolve, i.e. everything is going to the arbitrator.

Despite Respondents’ contention, the stay v. dismissal issue is a lingering one which arises almost every time the court grants a motion to compel arbitration of an entire dispute, and it looks like SCOTUS may be interested in resolving it. In August, two days after the petition was first distributed for conference, the Justices “requested” that the Respondents file an opposition. After several extensions, they filed that brief on December 4^th.  Since this issue is so prevalent, you may want to keep an eye on the SCOTUS docket Monday, when orders may be issued regarding Friday’s conference; I’ll try to watch, as well.  If cert. is granted or even if the application is merely pending, it may affect the argument that you make over the next weeks or months in any cases in which the court compels arbitration. For more information and copies of both the petition and the response, see the always excellent Scotus Blog at Scotusblog.com.

Hopefully there will be some meatier cases for the next “Highlights.”

David A. Reif, FCIArb
ReifADR
Dreif@Reifadr.com
ReifADR.com